At Valdosta, an Atrocious Violation of Due Process

The facts surrounding Hayden Barnes’ expulsion from Valdosta State University (VSU) are so shocking that they raise a difficult question: What’s worse, VSU’s violation of Hayden’s First Amendment right to freedom of speech, or VSU’s violation of Hayden’s Fifth and Fourteenth Amendment right to due process?

Unfortunately, VSU’s disregard for its constitutional obligations has been so blatant that strong arguments can be made for either side, so picking an answer here is tough. But since the free speech abuses are perhaps more readily apparent to a casual observer, it’s probably a good idea to make clear exactly just how callous VSU has been in this instance towards its legal obligation to guarantee the due process rights of its students.

As detailed in yesterday’s press release, VSU informed Hayden of its decision to “administratively withdraw” (i.e., expel) him from campus via a notice slipped under his dorm room door. That was it—no hearing, no presentation of charges, no explanation, no witnesses, nothing. Perhaps unsurprisingly, given Valdosta’s demonstrated disregard for constitutional rights, VSU’s conduct here violated even its own due process provisions, as we explained in yesterday’s letter to University System of Georgia Chancellor Erroll B. Davis, Jr.:

Valdosta State University’s Student Conduct Office has established controlling guidelines (“Hearing Committees and Process”) for student discipline and appeal. The Student Conduct Office states that “disciplinary sanctions shall be applied only after the requirements of due process, fairness, and reasonableness have been met. The aim of any disciplinary action is the redirection of student behavior toward the achievement of their academic goals.” Protocol for conducting hearings, and accused students’ rights therein, are also provided (“Hearing Procedure”) by the Student Conduct Office. Additionally, the Student Conduct Office maintains a list of applicable “Rights of the Student,” detailing those procedural protections afforded the student in accordance with the Fifth Amendment’s requirement of due process. Specifically, the Student Conduct Office proclaims:

[T]he accused student shall be afforded all rights required by due process, including:

A.     The right to an advisor of one’s choice.

B.     The right to present information on one’s behalf.

C.     The right to question one’s accuser(s).

D.     The right to call witnesses on one’s behalf.

E.      The right to remain silent and have no inference of responsibility drawn from one’s silence.

F.      The right to question all witnesses.

G.     The right to appeal all sanctions.

H.     The student may also have a verbatim transcript made at one’s own expense. Valdosta State University shall have this option at its own expense too.

I.        The right to attend classes and required Valdosta State University functions until a hearing is held and a decision is rendered. Exceptions to this are made when a student’s and or [sic] an organization’s presence could create a “clear and present danger” of material interference with the normal operation of Valdosta State University.

Save the right to appeal, Barnes was not granted any of these rights so enumerated.

To add insult to injury, Valdosta also managed to violate its own “Mental Health Withdrawal” procedure. (Not that applying such a procedure in Barnes’ case would be appropriate anyway. In addition to being a full-time student and a licensed paramedic, Barnes was granted a clean bill of mental health by a psychiatrist immediately following the administrative withdrawal). Again, as we explained in our letter:

Additionally, the Student Conduct Office maintains a governing policy on “Mental Health Withdrawal,” which reads:

To ensure that Valdosta State University students receive due process rights, Valdosta State University has initiated the following Mental Health Withdrawal Procedure. Before a student may be withdrawn for mental health reasons there must first be the following chain of events:

1.      The student displays behavioral indicators, which are determined by a mental health professional to be of danger to himself/herself or others.

2.      When a mental health professional recommends that a student needs to be withdrawn from school for mental health reasons, an informal hearing will then be set up to determine whether or not the student should be withdrawn.

3.      In this informal hearing, conducted by the Office of the Dean of Students, the student or his or her representative may present any pertinent information that he or she believes will have a bearing on the particular case.

This procedure is enacted to insure that the student’s legal rights are not violated and that the University has the right to remove any student whom it feels, based on professional evaluation, may present a danger to himself/herself or others.

Barnes’ dismissal by Zaccari seems to be predicated on precisely these terms, indicating that Zaccari believed Barnes’ withdrawal qualified as a “mental health withdrawal.” Indeed, the language used by Zaccari in the notice of administrative withdrawal delivered to Barnes mirrors the language of the Student Conduct Office’s policy. The notice informed Barnes that he was “considered to present a clear and present danger to this campus.” The notice also required that Barnes present “correspondence from a non-university appointed psychiatrist indicating that [Barnes was] not a danger to [him]self and others,” as well as “[d]ocumentation from a certified mental health professional indicating that during [Barnes’] tenure at Valdosta State [Barnes] will be receiving on-going therapy.” However, despite invoking the terms employed in the “Mental Health Withdrawal” procedure, and requiring further psychiatric testing, Barnes was afforded no opportunity to “present any pertinent information that he believes will have a bearing on the particular case,” as provided by the controlling policy.

In sum, Valdosta has not only violated the Constitution; it has violated its own rules. Talk about completely throwing any normative notion of fairness or good faith out the window!

As we conclude in our letter: “To effectively expel a student—as VSU has expelled Barnes—is the harshest punishment a university may issue. To do so without affording that student even the slightest fragment of the due process protections required by the Fifth Amendment, or even its own contractual promises, is unconstitutional, unlawful, and immoral.”

Stay tuned for more on Valdosta’s contempt for the Bill of Rights. Unfortunately, FIRE has a lot of material with which to work.